Environmental Decisions of the U.S. Court of Appeals, all Circuits. Summaries provided by Waste Information & Management
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Thursday, January 10, 2013

Jan 9: In the U.S. Court of Appeals, Tenth Circuit, Case No. 11-1192. Appealed from the U.S. District Court for the District of Colorado. The Appeals Court explains that the appeal concerns WildEarth Guardians' challenge to the National Park Service's elk and vegetation management plan for Rocky Mountain National Park. WildEarth filed suit in Federal district court challenging the plan and the final environmental impact statement the National Park Service (NPS) prepared in conjunction with the plan. WildEarth contends the NPS violated the National Environmental Policy Act (NEPA) by failing to include the reintroduction of a naturally reproducing wolf population as one of the alternatives considered in the environmental impact statement. WildEarth also challenges the agency's proposal to allow volunteers to assist the agency in reducing the elk population.

The district court affirmed the agency action, and WildEarth appealed. The Appeals Court ruled, "We find the record supports the agency's decision to exclude consideration of a natural wolf alternative from its environmental impact statement. We also find the agency's interpretation of the National Parks Organic Act and Rocky Mountain National Park Enabling Act persuasive, and that its elk management plan does not violate those statutes. Accordingly, exercising jurisdiction under 28 U.S.C. § 1291, we affirm."

The Appeals Court explains an underlying fact in the case that Rocky Mountain National Park (RMNP), located in northern Colorado, was established in 1915. The Rocky Mountain National Park Enabling Act (RMNP Act) bans hunting or killing wildlife within the park, with very limited exceptions. The park has always had a substantial elk population. But most elk predators, especially wolves and grizzly bears, were exterminated in the park area prior to its establishment, and Congress's decision to ban hunting in RMNP allowed the park's elk population to grow without constraint.

WildEarth argues the natural wolf alternative fit the purpose and need of the proposed action, and thus required the NPS to consider it in an EIS. It argues the natural wolf alternative was practical. In particular, WildEarth points to studies, emails, and other documents in the record discussing the benefits of this alternative. The Appeals Court said, "While the record supports some benefits to a natural wolf option, that is not what guides us. What guides us is a rule of reason, where the agency explains its decision to take certain proposed options off the table because of a lack of practicality."

The Appeals Court indicates that the NPS found the natural wolf alternative would be impractical despite some marginal upside, and the record supports that decision. For example, wolf reintroduction may have been successful in Yellowstone and Banff, but the record reflects that those parks are not a good comparator for RMNP. The NPS determined RMNP has relatively little suitable wolf habitat due to its small size and abundance of steep, high-altitude terrain, which wolves dislike. And as a consequence of the lack of habitat and wolves' natural tendency to disperse, NPS experts predicted that any wolves in RMNP would be very likely to leave the park boundaries, prompting conflicts with neighboring communities. Such conflicts would likely include predation on livestock and pets.

The Appeals Court concluded, "The record reflects that the NPS's elk management plan is meant to control the number of elk in RMNP. Elk will not be killed when they are within the target range. Culls will be closely supervised by NPS employees. Some cullers may enjoy the experience, but this is irrelevant so long as they kill elk for management purposes pursuant to the procedures and supervision of the NPS. The primary purpose of hunting is not for controlling a population of detrimental animals but for food and sport. Because the purpose of the NPS's plan is to control the population of the park's elk and their effect on vegetation, it is distinguishable from hunting, regardless of whether members of the public volunteer to participate in culls."

However, the Appeals Court noted in a footnote, "In reaching this holding, we do not mean to suggest that the NPS may authorize hunting in RMNP simply by covering it with the fig leaf of population control. As discussed, § 198c unambiguously bars anyone from hunting in RMNP. The culls contemplated by the NPS in its management plan will be tightly controlled and are sufficiently distinct from hunting that they do not run afoul of § 198c's restriction. But § 198c would clearly prevent the NPS from

creating a scheme similar to a state-regulated hunt by, for example, selling tags to licensed hunters and allowing them to freely roam the park every autumn to shoot elk, even if the agency's reason for doing so was to reduce RMNP's elk population."

Jan 9: In the U.S. Court of Appeals, Fifth Circuit, Case No. 12-30136. Appealed from the United States District Court for the Eastern District of Louisiana. The Appeals Court explains that the appeal arises from the multi-district litigation spawned from the disaster on the Deepwater Horizon drilling rig and the resulting massive oil spill that occurred at the Macondo well site in the Gulf of Mexico. Plaintiff Center for Biological Diversity (CBD) appeals from the district court's dismissal of its action brought under the citizen-suit provisions of the Clean Water Act (CWA), the Comprehensive Environmental Response,

Compensation, and Liability Act (CERCLA), and the Emergency Planning and Community Right-to-Know Act (EPCRA).

The district court dismissed the suit for lack of standing, mootness, and failure to state a claim for relief. The Appeals Court said, "We agree that most of the plaintiff's claims for relief have become moot because the Macondo well has been capped and

sealed. We conclude that, at least on the current record, the EPCRA claim remains viable. We therefore affirm in part, reverse in part the district court's judgment." The case is remanded for further proceedings.

On the specific EPCRA claim, the Appeals Court said, "The defendants' insistence that the claim is moot because information

about the spill is already publicly available is unavailing, at least on the current record. First, the claim that information about the disaster may be found by hunting on the Internet ignores the fact that EPCRA places an affirmative statutory duty on the owner or operator of the facility to report the information.

"Second, it ignores the EPCRA requirement that reports provided by owners or operators be maintained by state emergency planning authorities and be made available to the public at a designated location. See 42 U.S.C. §§ 11001(a), 11044(a). The obvious advantage of this requirement is to have vital health information available in one easily accessible place. Finally, although the defendants claim that the information is otherwise readily available, their citation to several government web sites is unconvincing. Our review of those web sites reveals a voluminous amount of information about the spill and the Government's response, but the specific information required by EPCRA is not immediately apparent. To be sure, the district court held that 'data regarding the spill and its cleanup are easily accessible,' but it cited no sources of information and made no findings as to where the information specifically required by EPCRA may be found.

"If the information required by EPCRA's reporting provisions may indeed be easily located from alternate sources, it may be that a further order from the district court would provide no meaningful relief to the Center and its members. Such a conclusion, although not affecting the Center's standing, might render the claim moot. See Harris, 151 F.3d at 189. But we are simply unable to decide that question on this record, and the case therefore must be remanded to the district court for further proceedings."

Miyoko Sakashita, oceans director for CBD said, "The public deserves to know exactly what toxins were spilled into our ocean during the Gulf spill, so we're very pleased to be a step closer with this ruling. It's a very important victory that BP could be finally forced to publicly disclose all the toxic components it spilled into the waters, but we're disappointed by the dismissal of our Clean Water Act claims. Throughout it all, we've insisted that those responsible for one of the worst environmental disasters in America's history should be held fully accountable for the profound damage they caused. The Gulf needs to be fully restored, both for the sake of its wildlife and for the people who depend on it for survival. We're certainly not there yet."

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